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Passengers Beware: You Can Be Frisked

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This week's Daily Record column is entitled "Passengers Beware: You Can Be Frisked."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.

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Passengers Beware: You Can Be Frisked

In Arizona v. Johnson, No. 07-1122, the U.S. Supreme Court addressed the issue of whether police officers who perform a lawful traffic stop have the authority to frisk the vehicle’s passengers.

The facts in Johnson are not complicated: The defendant was the passenger of a vehicle that was lawfully stopped after it was discovered that the vehicle’s registration was suspended. At the time of the stop, the arresting officers —members of a gang task force —had no reason to suspect that the occupants of the car had engaged in criminal activity.

After briefly questioning the occupants of the vehicle, one of the officers decided to question the defendant in an effort to gain gang-related intelligence. She asked him to step out of the car and, while conducting a patdown for the purposes of officer safety, located a gun.

In a unanimous decision written by Justice Ginsburg, the court likened the lawful traffic stop to a Terry stop (Terry v. Ohio, 392 U.S. 1 (1968)), concluding passengers are subject to patdown frisks when an officer has a reasonable belief that the person poses a threat to the officer:

[I]n a traffic-stop setting, the first Terry condition —a lawful investigatory stop —is met whenever it is lawful for police to detain an automobile and its occupants pending inquiry into a vehicular violation. The police need
not have, in addition, cause to believe any occupant of the vehicle is involved in criminal activity. To justify a patdown of the driver or a passenger during a traffic stop, however, just as in the case of a pedestrian reasonably suspected of criminal activity, the police must harbor reasonable suspicion that the person subjected to the frisk is armed and dangerous.

In reaching that determination, the court acknowledged that when
a traffic stop occurs, the arresting officer possesses probable cause to believe a traffic offense has been committed only in relation to the driver.

Nevertheless, the court reasoned that in the context of a traffic stop, the passenger, although innocent of any wrongdoing, nevertheless is subject to detention for the duration of the stop:

A lawful roadside stop begins when a vehicle is pulled over for investigation of a traffic violation. The temporary seizure of driver and passengers ordinarily continues, and remains reasonable, for the duration of the stop… a traffic stop of a car communicates to a reasonable passenger that he or she is not free to terminate the encounter with the police and move about at will.

Accordingly, since officer safety is a legitimate consideration throughout the duration of a stop, the patdown did not violate the Fourth Amendment.

I am conflicted about the practical application of the holding. It essentially boils down to a social contract, the foundation of which is the balance of individual liberties with the societal need for law and order.

Of course officer safety is paramount. To hold that police officers may not search a passenger for weapons when there is a perceived threat to their safety essentially
would cripple their ability to perform their job in an effective manner.

On the other hand, the decision provides unscrupulous arresting officers with the unfettered opportunity to conduct intrusive, invasive and arguably humiliating patdown searches on a whim —all under the guise of officer safety.

The true victims will be the unsuspecting, law abiding citizens whose only crime is being misfortune enough to ride in a car with a driver who commits the egregious, and inexcusable, crime of failing to signal before making a left-hand turn.

Do the benefits of the social bargain outweigh the costs?  Perhaps the “risk of a frisk” simply is the price we pay for the privilege of living in a society in which anarchy does not reign supreme.

Comments

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Benjamin Wolf

Here is my post on the topic as well:

http://schlissellaw.wordpress.com/2009/01/28/when-can-the-police-pat-you-down/

I appreciate your appraisal of the pros and cons, though it may be somewhat surprising that this was a unanimous decision.

Bob

Your last sentence could read "Perhaps the “risk of a frisk” simply is the price we pay for the privilege of living in a society in which freedom does not reign supreme."
After the Atwater v Lago Vista decision by the Supreme Court started eroding the Fourth Amendment this decision is certainly not surprising.
The Herring case advanced the SCOTUS judicial activism against the Fourth Amendment and the Johnson case simply continues the erosion.

Benjamin Wolf

Bob,

I don't necessarily disagree with your bottom line, but suggesting that the constricting of the Exclusionary Rule is "judicial activism" is stretching it a bit. After all, the Exclusionary Rule was not made part of "Constitutinoal Law" until the Weeks case in 1914! And the Mapp case holding that the Exclusionary Rule applied to the States wasn't decided until 1961!

So characterizing the tweaking and/or constriction of the rule as "judicial activism" is a bit far-fetched.

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